Sri Ram And Others vs State Of U.P. on 26 April, 2019

[Cites 11, Cited by 0]

Allahabad High Court

Sri Ram And Others vs State Of U.P. on 26 April, 2019

Equivalent citations: AIRONLINE 2019 ALL 1115, 2019 (109) ACC (SOC) 28 (ALL) 2019 (6) ADJ 28 NOC, 2019 (6) ADJ 28 NOC

Bench: Ramesh Sinha





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

1.
 
	A.F.R.
 
	                                                                                    Judgment Reserved on 27.03.2019
 
      Judgement Delivered on 26.04.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 117 of 1987
 

 
Appellant :- Sri Ram And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- G.S.Hajela
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Heard Sri G.S. Hajela, learned counsel for the appellants and Ms. Archana Singh, learned A.G.A. for the State and perused the record.

2. This criminal appeal has been preferred by the appellants Sri Ram, Ram Autar, Prakash and Dhanpal against the judgment and order dated 19.12.1986 passed by 4th Additional Sessions Judge, Shahjahanpur in S.T. No. 164 of 1986 (State vs. Sri Ram and others), whereby all the accused-appellants have been convicted under Section 302/34 IPC and have been sentenced with life imprisonment; have been convicted under Section 323/34 IPC and sentenced with three months rigorous imprisonment and have been convicted under Section 201 IPC and sentenced with four years rigorous imprisonment and it has further been directed that all the sentences shall run concurrently.

3. During the pendency of this appeal, accused appellant Sri Ram S/o Hori, has died and his appeal has been directed to be abated vide court's order dated 8.8.2018, therefore, appeal preferred by accused-appellants Ram Autar, Prakash and Dhanpal only survives before us.

4. The prosecution case as disclosed from the F.I.R. is that the informant Chet Ram S/o Lochan of Kachhi caste gave a written report at P.S. Kant, District Shahjahanpur on 5.4.1986 at about 9:20 a.m. stating therein that his father Lochan Kachhi had three brothers including him out of whom, Lochan and Hori had sons and Jodhan had daughters, thus he and Sri Ram (A-1) were cousin brothers. The partition had taken place between him and Sri Ram (A-1). The land of Jodhan had also been partitioned between them half each. The 'Bakhri' (Chhappar) of Jodhan was in possession of Sri Ram (A-1) and he did not want to give share in it to the informant. The informant's son Raghunandan had taken possession of his share after breaking its wall about three years ago because of this Sri Ram and his sons were extremely annoyed and right from that time onwards had started having enmity towards informant and his family members. Yesterday on Friday i.e. on 4.4.1986, informant's son Bramha dug the foundation from morning till the evening to raise the wall, then at about 9:00 pm, when Sri Ram (A-1), his sons Ram Autar (A-2), Prakash (A-3) and Dhanpal (A-3) returned from their fields and saw the foundation having been dug, started abusing informant family members and started filling up the said foundation, at which informant's son Raghunandan and Bramha restrained them from filling the foundation and told that they had dug the foundation on the portion which belonged to them, thereafter, above accused Sri Ram armed with Lathi, Ram Autar armed with Kanta, Prakash armed with Kanta and Dhanpal armed with Lathi came from their respective houses and started beating informant's son. When the sons of the informant raised alarm, all of them closed the doors of their houses and informant and wife of Raghunandan namely Somwati, daughter of Raghunandan namely Guddi came on the spot, who all wanted to rescue the sons of informant, then the accused had beaten them also and the accused continued making blows by 'Kantas' by which informant's son Bramha getting hit by 'Kanta' and 'Lathi' fell down and taking him to be dead the accused fled towards east. The condition of the informant's son was extremely critical, who was brough home and soon thereafter he succumbed to his injuries. It was dark night and due to heavy rains in the night, he could not come to lodge report and, therefore, he prayed that his report may be lodged and action be taken against the guilty. His other son Raghunandan (deceased) had gone missing in the night and his whereabouts could not be known, this report was dictated to one Dhrigpal Singh R/o village Amora, District Sahjahanpur by the informant Chet Ram and, thereater, the same was given at the P.S.

5. PW-2, H.C. 52 Makhan Lal who was posted on 5.4.1986 at P.S. Kant had prepared Chik F.I.R. (Ext. Ka-2) of this case at 9:20 a.m. and made its entry in G.D. at report no. 17 on the same day, at the same time. He had brought original G.D., carbon copy of which was annexed in the file which was placed on record after being signatured by him which is Ext. Ka-3 and clarified that when the said carbon copy was tallied with original G.D. it was found that Section 364 IPC was omitted from being mentioned and, therefore, he made the said correction and put his signature thereon. This witness had stated that along with Chet Ram (informant), wife of Raghunandan namely Somwati and his daughter Guddi and Chaukidar Radhe had also come at the P.S. and at that time Chet Ram, Somwati, Guddi were having injury and all the three were given Majroobi chitthi by him which are Ext. Ka-4 to Ka-6 respectively. All these three injured were sent along with Constable Gayaraj to Kant hospital for medical examination.

6. This witness in cross-examination has stated that in 21st line of Chik F.I.R. (Ext. Ka-2) it was written that "Aur mere ladke se mar peet karne lage" while in written report Ext. Ka-1 it is written that 'mere ladkon se marpeet karne lage". He has denied the suggestion that initially a text was prepared and on the basis of the same Chik F.I.R. was written by him. He stated it to be wrong that in column three of Chik report, Section 323 and Section 364 IPC were subsequently added. The paper no. 17 Ka/1 which is carbon copy of chik report which was prepared by him in one process after using carbon. He also admitted it to be right that in the copy of the said chik report, in column no. 3, there was no mention made of Section 323 and Section 364 IPC. The carbon copy of the said chik report was marked as Ext. Kha-1. He also stated it to be right that the original G.D. was in front of him, in the body of which in the side, section 364 was subsequently added, by that, he meant that immediatley after preparing the G.D., the same was added. In the original G.D. Section 364 IPC was added after removing the carbon, because of which Section 364 IPC was not found written in the carbon copy, which is marked as Ext. Kha-3. There was no lady constable at the P.S., he himself had seen injuries of Somwati and Guddi and denied the suggestion that both these injured had not gone to the P.S. He also denied the suggestion that after the medical examination having been completed, the F.I.R. and G.D. were prepared. He further has stated that in Majroobi chitthi relating to Somwati (Ext. Ka-5), there was no mention made of Section 364 IPC. In Majroobi chiththi of Chet Ram (Ext. Ka-4), Section 364 IPC has been subsequently added as the same is found mentioned in different ink. The said addition was done in his hand writing by him and it was right to say that in the Majroobi chiththi of Chet Ram, Section 364 IPC was omitted from being added. He has further stated that all the three Majroobi chiththi were sent from the P.S. at 17:50 hours and the medical report had been sent back. The informant and others had come to the P.S. by bullock-cart. He denied that report was lodged after consultation subsequently and he stated it to be wrong that in column three of the Ext. Ka-2, the text "va raghunandan gayab hona" was written in second column and in the same column, subsequently Section 323 and 364 IPC were also written.

7. Learned counsel for the appellants cited the above discrepancies in chik F.I.R. and the written report and also the additions of Section 364 IPC subsequently in the G.D., and argued that the entire manipulation has been made from the side of prosecution so as to falsely implicate the accused appellants and that the F.I.R. is ante-timed which demolishes the entire prosecution case.

8. After registration of the case, its investigation was handed over to I.O. Ram Lakhan Singh (PW-9). He, first of all, recorded statement of informant Chet Ram, Somwati and Guddi on 5.4.1986 at the P.S. itself and immediately rushed to the place of incident, where he appointed panchas and the inquest report of the deceased Bramha was prepared in his hand writing which is Ext. Ka-11. At the place of incident itself, he prepared photo nash, sample seal, chiththi C.M.O. in his hand writing and which have been marked as Ext. Ka-12 to Ext. Ka-16 respectively. The dead body of Bramha was handed over in sealed condition to Constble Ajay Pal and H.G. Ram Roop along with necessary documents and was dispatched for post mortem. Thereafter, he recorded statement of wife of the deceased namely, Pushpa Devi at the place of incident and made inspection of the place of occurrence and prepared its site plan which is Ext. Ka-17 and collected plain soil and blood stained soil from there and prepared its fard in his hand writing which was signed by Jagdish Singh and Shivraj Singh which is Ext. Ka-18. There was a blanket upon the dead body of Bramha at the place of incident, small piece of which was cut and small piece of 'Dhoti' was also cut which was smeared with blood and they were sealed after being taken in possesion and its Fard was prepared by him which was Ext. Ka-19. On 6.4.1986, he made search of the dead body of deceased Raghunandan Singh which was discovered and its panchayatnama was prepared in his hand writing which is Ext. Ka-20; photo nash, challan nash and chiththi C.M.O. were prepared by him in his hand writing, which were Ext. Ka-21 to Ka-23 respectively. His dead body was sealed on the spot and its sample seal was prepared which is Ext. Ka-24. From the place where the dead body of Raghundandan was recovered, 'Lathi', 'Bans' and blood smeared clothes of the deceased were found and the dead body of Raghunandan was found in tied condition which was taken in possession and the recovery memos of these articles were prepared in his writing and were got signed by the witnesses which were Ext. Ka-25 and Ka-26 respectively.

9. Witnesses of inquest were also present whose statements were recorded and the statements of those witnesses were also recorded who had taken out the dead body of the deceased Raghunandan. After sealing the dead body of deceased Raghunandan on the spot and having prepared the necessary documents, the same was handed over to Constable Sahab Singh and Home-guard Kamal Singh for its post-mortem. On 6.4.1986, the site plan was prepared of the place where the dead body of the Raghunandan was found in his hand writing which is Ext. Ka-27 and on the same day, he also recorded statements of witnesses of Fard. On 5.4.1986, personal search was made of Ram Autar (A-2) and Sri Ram (A-1) and one 'mala' and one 'chapa' were recovered and its fard was prepared by him in his hand writing which is Ext. Ka-28. On 26.4.1986, one torch was given in Supurdagi of Smt. Somwati, wife of Raghunandan, which was taken in custody by the police and the supurdiginama was prepared by him in his hand writing which is Ext. Ka-29.

10. On 8.4.1986, the statements of accused Sri Ram, Ram Autar and Dhanpal were taken in Hawalat and subsequently charge sheet was submitted against Sri Ram, Ram Autar, Prakash and Dhanpal in his hand writing which is Ext. Ka-30. The blood stained soil and ordinary soil pertaining to deceased Bramha and deceased Raghunandan were sent to Agra for chemical examination and also their blood stained clothes and 'Lathi' were sent for chemical examination, result of which could not be received by him till submission of charge sheet.

11. In cross-examination, this witness has stated after perusing the site plan Ext. Ka-17 that the same was prepared by him at the instance of informant Chet Ram on 5.4.1986 at 2:00 pm. The informant Chet Ram had come to the spot on 5.4.1986 at about 11:00-11:30 am. He has indicated the distances in the site plan. The foundation, which was dug has been shown in the site plan, which was the western wall of the informant Chet Ram and near it has been show by 'A' where the quarrel had started. There is a wall between the house of informant Chet Ram and accused Sri Ram which is about a man's height. In the site plan, from the place shown by 'X' he had collected the blood and at no other place. In both the inquest reports of deceased Bramha and Raghunandan, Jagdish Singh and Shivraj Singh were punch. In Ext. Ka-18, Ka-19, Ka-25, Ka-26, Ka-28 and Ka-29, which are Fard (recovery memos), the same witensses namely Jagdish and Shivraj Singh have signed. On 21.4.1986, he had prepared the recovery memo of torch, which is Ext. Ka-29 and on that date, had not recorded any statement of Somwati. He denied that recovery memo in respect of torch, which is Ext. Ka-29, was prepared falsely and that in the said Fard, there was over writing at 21 and 4. He further has stated that he did not ask for the torch from Bhuri on 6th and 7th April, 1986 because she did not meet him and she could meet him thereafter on 21.4.1986.

12. He has further stated that in case diary, he had copied the F.I.R. from chik report and had mentioned the time of reaching village Amora. In respect of rest of investigation and with regard to taking articles in possession, he has not mentioned any time. On 8.4.1986, he had come from village Amora to record statements of accused at P.S. and in parcha of the same date, apart from recording statements of the accused, he also made endorsement in respect of the arrest of the accused. The parcha of 8.4.1986 was dispatched to C.O. which was also signed by the Magistrate because accused were sent to jail. It is right to say that parchas of 5.4.1986, 6.4.1986 and 7.4.1986, were sent by Inspector to the C.O. on 9.4.1986 but it is wrong to say that the parcha dated 5.4.1986, 6.4.1986 ad 7.4.1986 had not been prepared before preparing parcha dated 9.4.1986. It is also wrong to say that because of these parcha not having been prepared, all the three parchas of above date were not sent on 8.4.1986, although on each of these parchas, there are small signatures of C.O. but beneath the same, no date has been mentioned. There are also small signature of C.O. Sri Mahendra Pratap Singh on these parchas. In the inquest report (Ext. Ka-11) of the deceased Bramha, in opinion of the panchas, on the line, above mala, some text is written after making mark but it is wrong to say that the word 'mala' was added subsequently. It is right to say that in Ext. Ka-11, there is over writing on the time 13:30 hours which has been modified as 14:00 hours. In body of Ext. Ka-11, Section 364 and 323 IPC have not been written by different ink nor have they been written after cutting. It is also wrong to say that the same is written by different ink subsequently. In column 3 of Challan nash, Ext. Ka-12 4/5.4.1986, time 1:00 am (night) is written. In column no. 3, the time relating to death is mentioned and the same was endorsed, as is told by the villagers. The said time was not revealed by informant Chet Ram. Informant Chet Ram was present at the time of preparing inquest of Bramha and Naksha Lash (Ext. Ka-13), sample seal (Ext. Ka-14), Chiththi C.M.O. (Ext. Ka-15), Chiththi in respect of taking clothes in possession (Ext. Ka-16) pertaining to deceased Bramha do not bear Section 302 IPC. Section 302, 323 and 364 IPC have also not been mentioned in these documents and on his own he admitted that this was an inadvertant mistake. Further he stated that it was wrong to say that on Fard (Ext. Ka-18) and on Fard pertaining to blood stained clothes of Bramha, Ext. Ka-19, Section 323 and 364 IPC were subsequently added. In Fard Ext. Ka-28, pertaining to 'Kanta' and 'Bhala' there was no crime number mentioned. He denied that till preparation of these Fard and inquest report of Bramha, the report of informant was not written. In site plan Ext. Ka-17, he has not recorded the time when the witnesses witnessed the occurrence. He had gone to the place of occurrence after having crossed river Garai which was crossed by tractor. The dead body of Raghunandan was found inside water in the said Garai river which falls in the jursdiction of village Bairang. The place from where he had crossed that river, from there, the place from where the dead body of Raghunandan was recovered, was about 2 km away but he could not tell its direction. On 5.4.1986, after having reached the place of incident, first of all he prepared panchayatnama and, thereafter, recorded the statements of villagers and inspected the place of incident, went in search of the accused etc. He had two constables and 3 Home-Guard with him. On the dead body of Bramha, one white 'Baniyan', one white 'Kurta' and one white underwear was found and on the dead body of Raghunandan, a black coloured wollen 'Baniyan' and underwear was found. On 5.4.1986, he had proceeded from the P.S. to initiate the investigation and had returned to the P.S. on 8.4.1986 and, thereafter, on 8.4.1986, he again went to the place of incident and on 9.4.1986 returned from there but no detailed description has been mentioned about it by him in G.D. nor has he mentioned as to whose (witnesses) statements were recorded by him. He has further stated that Chet Ram had stated to him that the outside where he used to sleep, he had seen Banwari and Raghurai S/o Pyare Kachhi and Basant S/o Prahlad and Udai Raj Kachhi and their sons were talking to each other beneath a Neem tree but he could not hear as to what was being talked, but he was having suspicion that they had hand in killing his son. Informant Chet Ram had also stated to him that because of it being dark night, he could not see as to where had Raghunandan gone somewhere or had he been killed. Further this winess had stated that Chet Ram had not stated to him that 'marpeet' took place at 35 paces away from the place where foundation was being dug, where Bramha had fallen. Somwati had not stated in her statement under Section 161 Cr.P.C. that the accused after having abused had gone to their home and her husband and 'Devar' had also gone home. Somwati had not stated to him that the accused came there, after some time with 'Kanta', 'Ballam' and 'Lathi' where the foundation was dug and then her husband and 'Devar' came out from their houses and, thereafter, abusing had started. Somwati had also not told him that the accused had taken away beating her husband and 'Devar' to the door of her house and in the corner of Chaupal of Basant, beating them. Somwati had also not told him that the accused had done marpeet with her husband in the corner of Chaupal of Basant nor had she told him that the accused had taken away her husband Raghunandan from the place of incident. Somwati had also not told him that Sri Ram had beaten her, her daughter Guddi and her father-in-law, nor had she given statement that there was any enmity of his family with Sri Ram and others but they were on talking terms.

13. During investigation, he did not record any statement at PHC of Dr. Sri Gopal but it is wrong to say that he had endorsed wrong time of despatch and it was also wrong to say that the dead body of deceased Bramha had already reached since morning at P.S. Kant and that it was wrong to say that the arrest of the accused has been falsely shown and he did not try to know about the correct facts and that the accused had been falsley implicated and that no 'Lathi' and 'Kanta' was recovered from the house of Sri Ram. At the time of recovery of 'Lathi' and 'Kanta', there was no person in the house, rather there were only cattle. The clothes which were taken in police custody from the dead body of deceased Raghunandan, were kept in sealed bundle and when it was open, he identified the same which is material Ext. -1 and further stated that by the said cloth the neck and the injuries were tied. The 'Bhala' and 'Kanta' which were recovered at the instance of Sri Ram, were taken in police custody which are material Ext. 2 and 3 respectively.

14. After submission of charge sheet by PW-9, charge was framed against all the accused-appellants on 21.7.1986, under Section 302/34, 323 read with 34 IPC and Section 201 IPC to which, they pleaded not guilty and claimed to be tried.

15. In order to prove its case from the side of prosecution, informant Chet Ram as PW-1, HC 52 Makhan Lal as PW-2, Smt. Somwati, wife of Raghunandan, one of the two deceased, as PW-3, Dr. Ashok Kumar Agarwal as PW-4, who conducted the post-mortem report of the deceased Bramha, Dr. Vimal Kant Goyal as PW-5, who conducted medical examination of injured Somwati and informant Chet Ram, Dr. Arun Prakash Dixit, who conducted post mortem of deceased Raghunandan as PW-6, Constable 738 Abhaipal Singh, who carried the dead body of deceased Bramha for post-mortem as PW-7, C.P. 349 Sahab Singh, who carried the dead body of Raghunandan for post mortem as PW-8, Ram Lakhan Singh, S.I., who conducted investigation as PW-9, have been examined.

16. Thereafter, the prosecution evidence was closed and the statements of accused were recorded under Section 313 Cr.P.C.

17. In view of accused Sri Ram having died, his appeal has been abated. We are taking into consideration the statements made by the remaining three accused-appellants only.

18. Accused- Ram Autar has taken plea of false implication and the entire evidence which has been collected by the prosecution, has been stated by him to be false and additionally he has stated that Chet Ram (informant) did not want to give land of Jodhan after his demise to his father Sri Ram. The panchayat had partitioned the land of Jodhan after the demise of his daughter Indar between Chet Ram and Sri Ram, half each, therefore, Chet Ram had started having grudge against them and that he did not have any talking terms with Chet Ram.

19. Similarly, taking plea of false implication the other co-accused appellant Prakash has additionally stated that Raghunandan and Bramha had lot of enmity with various people in the village; in the night at about 1:00 am, a big noise was heard in the village to the effect that the dead body of Bramha was lying in the corner of Chaupal of Basant and on the date when dead body of Bramha was found, one day prior to that Raghunandan (deceased) had already gone out of the village.

20. Accused-Dhanpal also taking the plea of false implication has stated that due to enmity, the complainant side has falsely implicated his entire family.

21. After having considered the entire evidence on record and having heard counsel of both the sides, the trial court has convicted the accused-appellants and awarded punishment as mentioned above.

22. We have to see in the light of the evidence on record after its evaluation afresh as to whether in the light of the arguments made by the learned counsel for the appellant, the impugned judgement deserves to be set-aside or the same should be upheld.

23. The main emphasis by learned counsel for the appellants while arguing the case was placed upon the fact that the genesis of the case appears to be shrouded in mystery because according to F.I.R. only one son of the informant i.e. Brahma is stated to have died after receiving injuries which was caused by the appellants while the other son i.e. Raghunandan had gone somewhere in the night and his whereabouts could not be known but subsequently during investigation, an improvement has been made when the dead body of the other son, Raghunandan was found after two days of the incident that he was also assaulted by the accused appellants by weapons mentioned above which ultimately resulted in his death also. It is further argued that number of injuries which are found on the person of the deceased, Raghunandan are so many that a person who if he received so many injuries could hardly be in a position to travel for any distance and would have died certainly on the spot itself. In view of that, it was vehemently argued by him that the incident happened in some other manner and the accused appellants have been falsely implicated due to animosity. Another argument raised by the learned counsel for the appellants is that Section 364 I.P.C. was added subsequently in G.D. as well as in panchayatnama although no charge has been made under the said offence; F.I.R. is ante-timed. The theory which has been set-up by the prosecution that the partition has taken place between the accused and the complainant side was false because all the brothers were staying in the same house and that all the accused were working in the field adjacent to the place where the occurrence is stated to have taken place and had there been any activity of digging the foundation for raising wall, the same would have been opposed strongly soon after the same was started and that accused would not have waited till night at about 9:00 p.m. and would have started abusing and beating the complainant side; the said circumstance is totally against the ground reality and falsifies the case of prosecution.

24. On the other hand, learned A.G.A. vehemently defended the impugned judgement stating that the trial court has meticulously appreciated the evidence which has come on record and that all the eye-witnesses have distinctly stated to have seen the accused-appellants having caused injuries to the deceased, Brahma who died on the spot while the other deceased, Raghunandan who also received injuries in the occurrence, had fled from there to save his life and ultimately he was also found dead two days after this occurrence and, therefore, it was vehemently argued that it cannot be ruled out that the death of Raghunandan also occurred due to injuries which were caused to him in this occurrence. It is further argued that the ocular testimony is wholly in consonance with medical report and, therefore, looking to the fact that there was enmity due to raising wall by the complainant side which was being opposed from the side of accused, this incident was given effect by the accused side and the judgement of the trial court does not suffer from any infirmity and the same deserves to be upheld.

25. We have to re-appraise the evidence on record so as to form our own opinion. In this regard, we find that P.W.1, Chet Ram (informant) S/o Lochan has sated in examination-in-chief that the name of his grand-father is Bhajjan who had three sons i.e. Lochan, Jodhan and Hori. He is the only son of Lochan and he has two sons i.e. Raghunandan (deceased) and Brahma (deceased). Hori's son is Sri Ram and Sri Ram has six sons i.e. Prakash, Ram Autar, Dhan Pal, Veer Pal, Sarju and Gabadu. Jodhan has only two daughters out of whom one had died and other is in her matrimonial home. He knows accused Sri Ram, Ram Autar, Prakash, Dhanpal who are present in the court whose house is adjacent to his own house. The property of Jodhan was partitioned and half each of the same had fallen in his share and in the share of Sri Ram which took place about three years ago. Prior to this partition, the house which was in possession of Jodhan earlier, the same was in possession of Sri Ram but subsequently he (P.W.1) also came in possession of the same. About four months prior to the murder (present-occurrence), his sons, Raghunandan and Brahma on the one hand and Sri Ram and Shyam on the other had a litigation. About four months ago in the month of Chaitra, his son Brahma had laid the foundation to raise wall thereon, work of which continued whole day. On the said day i.e. on Friday, Sri Ram, Ram Autar, Prakash and Dhan Pal all came from their fields, by that time it had become dark and at about 9:00 p.m., all of them started abusing his sons, Brahma and Raghunandan telling them as to who had dug the said foundation and all the four accused started filling up the said foundation. At this, Brahma and Raghunandan told that they had laid the foundation on their property but thereafter all the accused came there with Kassi, Fawda, Kaanta and Lathi and started beating both his sons. Sri Ram was armed with lathi, Ram Autar and Prakash were armed with Kaanta and Dhanpal was armed with lathi. At that time, P.W.1 was on his chaupal from where he witnessed this occurrence. At the time of occurrence, the wife of Raghunandan and his wife Guddi also reached there. His chaupal was 10-12 paces away from the place of incident towards North. His daughter-in-law was also beaten by accused and his daughter, Guddo was thrown away and in this occurrence, his daughter-in-law received injuries. When he reached for the rescue of his sons, even he (P.W.1) was beaten by Sri Ram with the aid of lathi and he also received injuries. His daughter-in-law had brought a torch on the spot. The accused fled away from the place of incident after having caused injuries to Brahma and as a result of those injuries, Brahma died on the spot whose dead-body was brought from the place of occurrence to chaupal. He could not know about Raghunandan as to where he had gone and what happened to him. Throughout the night because of fear and there being river on the way, he did not go to lodge the report and on the next day in the morning, he got the report written by Durg Pal which was dictated by him and after having written the same, he had read out the same to him whereafter he put his thumb-impression upon it and the same is Exhibit Ka-1. Along with him, Rajesh had also gone to the P.S. but had not taken his daughter-in-law there and had handed over the written report at the P.S. Thereafter his medical-examination was conducted and the medical-examination of his daughter-in-law was also conducted. He has further stated that two days after this incident, the dead body of his other son, Raghunandan was found in the mortuary of the town. The said marpeet (occurrence) took place where the foundation was being dug and from there, Brahma fell down at a distance of about 35 paces in the corner of chaupal of Basant. At the time of incident, the wife of Raghunandan had switched on her torch and in the light of the same, P.W.1 had seen and identified the accused and also identified them by their voices.

26. Learned counsel for the appellants while reading out the said examination-in-chief pointed out that no recovery memo was made of the said torch and this version of identifying the accused in the light of the torch was subsequent modification as the same was not mentioned in the F.I.R. and also argued that no one had gone for identification of the dead body of the Raghunandan and also pointed out that investigation was not done in respect of the fact as to where Raghunandan had gone although his dead-body was found at a distance of about 6-7 fields. It was also pointed out that in F.I.R., it was mentioned that Brahma was taken to the house and not on chaupal.

27. In cross-examination, this witness has stated that he had written in his report that marpeet had taken place with Raghunandan also which had happened at the place where the foundation was dug up to the chaupal of Basant. The I.O. had not made any interrogation from him in regard to these murders because he had gone to Shahjahanpur. He has further stated that if in his report, the said fact is not found mentioned that the marpeet happened between the places i.e. where the foundation was dug up to the corner of chaupal of Basant, he could not tell its reason. He has further stated that on the date of incident, it was dark night and in his report, he had mentioned that he had seen the accused in light of torch which was brought by his daughter-in-law and if the same is not found written, he could not tell its reason and had also mentioned in his report that he had identified the accused by their voices and if the same was not found written, he could not tell its reason. He denied that he was stating these facts before the court for the first time on bring counselled by Basant Lal Khanna, an Advocate.

28. One son of deceased, Raghunandan stays at home; Brahma had married twice. His first wife was taken away by her family members with her consent and both her wives are alive. On the date of incident, the second wife of Brahma was present in house. He has denied the suggestion that because of enmity from the first wife of Brahma, this incident happened and also denied the suggestion that Basant had filed Civil Suit pertaining to land in which Raghunandan had won the case. A case under Section 307 I.P.C. was also initiated against Basant which was related to making fire by him upon Raghunandan, in that case, Basant was convicted. The father of Banwari was also murdered and regarding this, a case was initiated against Raghunandan (deceased).

29. He had not given any statement to I.O. that Banwari S/o Bodil, Raghurai S/o Rapate, Basant S/o Prahlad, Rapate S/o Prahlad could have hand in killing his sons but how the same had been written by him, he could not tell its reason. Further he has stated that because of nervousness, he could not know as to where the Raghunandan had gone but it is wrong to say that he had given statement to the I.O. that because of it being a dark night, he could not see as to whether Raghunandan had fled or had he also been killed. He has also stated that as to how the I.O. has recorded 'andhere ke karan', he could not tell its reason. Durg Pal had not accompanied him to the police-station. He (P.W.1) had reached P.S. at the time of 'nashta-chabaina' (appears to be break-fast time) but had lodged the report after the sun had come up. He had got the report prepared by Durg Pal. He sat at the P.S. for some-time thereafter, stated that he kept sitting for about two minutes. After his medical examination at the hospital, he did not go to the P.S. rather had come home nor had he gone to collect the copy of the report from the P.S. as he has no knowledge as to what is a copy of the report supposed to be. Further he stated that after having reported the matter at P.S., he did not receive any copy or paper but has denied the suggestion that he had not got the written report (Exhibit Ka-1) prepared by Durg Pal. He also does not recollect whether his thumb-impression was taken in the said report by Durg Pal in the village nor does he remember whether the thumb-impression was taken by ink of pen or by some other means.

30. After citing the above piece of evidence, learned counsel for the appellants has argued that it is evident from the above statement of this witness that for the whole night, he did not lodge the report at the P.S. and kept waiting till next day without any justifiable reason and, therefore, the F.I.R. seems to be tainted, hence, its veracity ought to be discarded.

31. The name of daughter of his uncle is Inder who died last year, who was a married lady but did not have a legal heir. The other daughter of Jodhan was Sobarni who had children both sons and daughters and her age is equal to P.W.-1's age; Soberni lives in her matrimonial home in the village. Inder had become widow about 30 years ago and used to live both at her parent's house as well as in her matrimonial home equally. Inder used to live in the house of her father and it was wrong to say that she had become widow about 30 years ago and it was also wrong to say that she was staying in her paternal home continuously for the last three years. Inder used to do farming at batai in her matrimonial home but her death took place in the house of her father. It is wrong to say that they (P.W. 1 and his home folks) had harassed Inder so as to compel her to leave the house. It is right to say that Inder had lodged a police report against both his sons but it is wrong to say that any case of marpeet was initiated against his sons by Katte Chamar in which accused, Sri Ram was a witness. He also does not know as to who all were witnesses of prosecution in the said case. He further stated it to be wrong that there was no case contested between Sri Ram and both his sons and on his own stated that one case under Section 107/116 Cr.P.C. was contested, in regard to which, he had never gone to Shahjahanpur nor does he know as to what is the nature of the said case under Section 107/116 Cr.P.C. This witness has further stated that Garai river flows all around village, Amaura. Baraing lies to the east of his village across river Garai. Garai river flows from his village at a distance of ten fields in the direction of Baraing. His sons, Raghunandan's dead body was found in village Garai as was told by the people. At the time of incident, there was sufficient water in the said river so as to enable a boat to be used. When he had gone for lodging the report, he had gone crossing the river on foot because there was very little water in it.

32. The place where the dead body of Brahma was lying, from there his chaupal was situated about 30 paces towards North and from the said place where dead body was lying, his house was 30 paces towards South. The place where Brahma had fallen down after being assaulted from that place towards East, goes a route/passage which is about two hands in width. In the North-Western corner of his house leaving about ten fields, there is a khalihan. During the days when incident happened, the katai of the crop of wheat started and also katai of the crop of gram and barley was also going on at full pace. In those days, crop of gram was being cut which was kept by him in the outer side of chaupal. The said work continues till 9:00-10:00 p.m. For keeping vigil of his fields in the night, Brahma and Raghunandan never went and it was right to say that he (P.W.1) used to sleep on his chaupal in the night.

33. The dead body of Brahma was picked up by the villagers and was placed at the chaupal and was not taken to his home. In his report, he has written that dead body was brought to his home but by that he meant chaupal and not home. He stated it to be wrong that he himself had not lodged any report and it was also stated to be wrong that the said report was lodged by the I.O. and only his thumb-impression was obtained thereon by him. It was also stated to be wrong that in this occurrence, he did not receive any injury and while saying so, he started weeping and started taking off his clothes and uttered 'kya mujhe chot nahi aayi'.

34. Further this witness has stated that it is wrong to say that in this occurrence, his daughter-in-law did not receive any injury and that he and persons of his side had received injuries on some other place in some other manner. He also stated it to be wrong that no mar-peet took place where the foundation was dug or in the corner of chaupal of Basant.

35. He also stated it to be wrong that his son, Raghunandan went missing one day prior to this occurrence and it was also wrong to say that in the night at about 1:00 a.m., villagers started raising noises then he and his family members came out of his house and then they saw that the dead body of Brahma was lying near the chaupal of Basant and also stated it to be wrong that the occurrence did not happen at 09:00 p.m.

36. He has further stated that about three years prior to this occurrence, partition of the property (house) of Jodhan had taken place between him and Sri Ram but no partition wall was raised. It is right to say that because of this partition having taken place, his sons had broken the wall of Jodhan's Bakhari and had taken possession thereon. This incident of breaking the wall was about three years old. After breaking this wall, half portion belonging to him (P.W.1) was annexed in his share while rest half portion was taken by accused, Sri Ram which lay in North. His share (P.W.1's) lay towards south and in portions of both of them, there is wall dividing their respective shares. No case with respect to breaking of wall was filed by Sri Ram. On the date of incident, Brahma had dug the foundation towards west of his house for raising western wall. The said foundation was dug single handedly by Brahma and at that time, Raghunandan was at home. He does not know whether the sons of Sri Ram i.e. Veer Pal, Sarju and Gabdu were at home at the time of foundation being dug or not. Sri Ram and Prakash had their wives and it is right to say that Sri Ram, his wife, daughter-in-law and children live in the same house. Brahma had done the foundation work by Kassi and when accused came at the place of incident, at that time, Brahma after having done the work of laying foundation had lied down upon the cot. Brahma had placed his Kassi by that time in his house when accused had picked up lathi and kanta, Brahma did not bring Kassi but it is wrong to say that on the said date, neither any foundation was dug nor any work for laying foundation was done with respect to which any quarrel had happened. He showed ignorance whether on the date of incident, wife, daughter-in-law and children of Sri Ram were there or not. He further stated that he had enmity with Sri Ram and because of that, he had not gone to his door and also stated it to be wrong that he and Sri Ram were not on talking terms. Further this witness has stated that in that night, he stayed near the dead body of Brahma at chaupal and did not go anywhere, he in the morning tried to find out about Raghunandan. He had gone to mortuary with the dead body of Brahma in course of the day and when he proceeded for mortuary, on the way fell P.S. Kaant. He had not gone to P.S. Kaant with the dead body. When the dead body of Brahma was on his chaupal, the police had done writing work in that regard in front of him on chaupal. He had already got a report written by Durg Pal. When the accused had fled from there, villagers had arrived. His village is too big and its Pradhan is Jagdish Singh. The village Chaukidar also resides there but he does not know what his son does. In the night after the incident, the Pradhan and Chaukidar of the village had arrived. The village is located at a distance of three kos from P.S. Kaant. Pradhan has a licence of gun. At the time of incident the village Pradhan, Jagdish, Bade and Sundar had licence of gun. One of the washer-men had also licence but he did not tell anyone of them in the night to accompany him to the police-station to lodge report nor had he sent Chaukidar in the night to the P.S. He has further stated that Pacheda is located at a distance of one kos from his village; for coming to Kaant from Pacheda, there are bus services both Government and private, but he does not know their timings and whether they commute throughout night or not, but further stated that the buses starts plying from 10:00 a.m. He stated it to be wrong that due to enmity with Sri Ram and his sons, they have been falsely implicated in this case and no such incident had happened.

37. The testimony of this witness was read by learned counsel for the appellants word by word before us and it was argued in the light of this statement that there were enough number of people having licensed guns or were having licence of guns and, therefore had he made request to anyone of them to accompany him to the P.S. to lodge report, certainly he would have been given help by them and he could have lodged the F.I.R. in the night itself but he did not do so which is unnatural act on his part and it was deliberately not done because no such incident had actually happened in which the accused were involved. In-fact the deceased were done to death by some unknown assailants and when hue and cry was made by villagers after having seen the dead body lying there then informant, because of enmity stated above, has implicated them. It was also vehemently argued that there was no occasion for raising any partition wall because had that been done, the same would have been forcefully resisted from the side of accused appellants as their family members were at home and they would never allow such kind of laying of foundation work to proceed and the quarrel would have happened soon after the said work would have been started.

38. We find that the above arguments made by the learned counsel for the appellants is based on speculation particularly with respect to the P.W.1 not having made efforts in the night to go and lodge an F.I.R. We find that not going to lodge an F.I.R. in the night at the P.S. which is stated to be ten kms. away from the place of incident does not appear to be unreasonable particularly in that circumstances when dead body of Brahma was lying close to the house of the complainant side. Any person of common prudence would certainly have waited till morning to go and lodge the F.I.R. as has been done in the present case, therefore, we do not find any merit in the argument that delay in F.I.R. was there in the present case which would make the prosecution case to be suspect. It was also sought to be proved that deceased, Raghunandan and Brahma both had criminal antecedents and therefore, they might have been murdered by the other persons with whom they were having enmity but we do not find any concrete evidence on record strong enough to indicate as to who else could have murdered them.

39. P.W.3, Somvati wife of deceased, Raghunandan stated in examination-in-chief that she recognizes the accused, Sri Ram, Ram Autar, Prakash and Dhan Pal who are present in the court from before as they are residents of village Amaura. Deceased, Brahma was her devar (brother-in-law) while Raghunandan was her husband. About 5 months ago, Brahma had dug foundation from morning till evening and in the evening Sri Ram, Ram Autar, Prakash and Dhan Pal came at their house and having seen the foundation having been dug, they started abusing her brother-in-law, Brahma and husband, Raghunandan and started filling the gap of said foundation by fawda and at this, her husband and brother-in-law restrained them from filling the foundation whereupon all the four accused went to their home and her husband and brother-in-law had also gone home. Soon thereafter all the four above named accused came near foundation in which Sri Ram and Dhan Pal were having lathis, Ram Autar was having kaanta and Prakash was having Bhala (It was pointed out by appellants' counsel that it was introduced for the first time) and all these four accused started abusing her husband and her brother-in-law on which her husband and brother-in-law also came out from the house and both sides got involved in talking to each-other, in the mean-time all the four accused started assaulting her husband and brother-in-law and in the process, they were taken to the corner of chaupal of Basant where all the four had assaulted her husband and devar, Brahma. Brahma received injuries of kaanta, spear and lathi. Her husband was also beaten by them but she could not see any injuries caused to him. Brahma was gasping, therefore, he was picked up from there and brought on chaupal but she could not see as to what happened to Raghunandan. During this incident, accused Sri Ram also assaulted her by which she received injuries. In the meantime her daughter, Guddi who had come on the spot, was also beaten by them by which, she fell down and also received injuries. Her father-in-law, Chet Ram also received injuries in this occurrence who was beaten by Sri Ram. This occurrence was witnessed by her in light of torch and had recognized all the accused also by their voices. Brahma had died on chaupal while accused had taken away her husband, Raghunandan from the place of incident and also fled from there. She had gone to P.S. Kaant next day in the morning and was sent for medical examination from the P.S. after about half an hour where her medical examination was conducted.

40. Citing this statement in examination-in-chief of this witness, it was pointed out by learned counsel for the appellants that it was worth-noting as to why no mention was made about this fact that the other deceased, Raghunandan was taken away by the accused from the place of incident while they fled from there which was an important fact and it also needed Section 364 I.P.C. to be added as one of the offences committed by the accused, all this indicates that genesis of the case is not very clear and real facts have been with-held from coming to the fore.

41. In cross-examination, this witness has stated that when she went to the hospital, doctor met her but soon thereafter she said that there was no doctor. After her medical examination, she did not go to the police-station rather had gone to Shahjahanpur. When she had gone to police-station, she was interrogated by the I.O. She had not stated to the I.O. that the accused after having abused had gone to their home and her husband and brother-in-law had also gone home and thereafter again she stated that the fact of this kind was disclosed by her to the I.O. but if the same was not recorded by him, she could not tell its reason. She had also told the I.O. that accused had come soon thereafter to the place where the foundation was dug, armed with kanta, ballam and lathi, thereafter, her husband and devar also came out of the house and then the accused started abusing them but if the same was not recorded, she could not tell its reason. She also stated to the I.O. that the accused had taken her husband and devar and were beating/assaulting them at her door up to the corner of chaupal of Basant but if the same was not recorded, she could not tell its reason. She also stated to the I.O. that the accused had done marpeet with her husband also in the corner of chaupal of Basant but if the same is not written, she could not tell its reason. She has also stated to the I.O. that during marpeet, she could not see her husband as to where he was and then she stated that he might have fled from there. She further stated that the said statement was correct which was given by her to the I.O. and it was right to say that during incident, she could not see as to where her husband was but when her husband was being beaten, she had focussed her attention and had seen in the light of torch herself that accused had assaulted Raghunandan by which he had fallen in the corner of chaupal of Basant. None of her statement given above is wrong because she had seen the accused assaulting her husband but she could not see where her husband had been taken away. She had seen the accused running towards east after the occurrence in the light of torch. It was right to say that after the occurrence, villagers had arrived and her devar was lifted to be placed on chaupal. It was also right to say that soon after occurrence, the Chaukidar and Pradhan had also arrived there but she could not tell whether Pradhan had brought with him a gun or not. She had not asked Pradhan and Chaukidar to search for her husband nor did she ask anyone from among the villagers who had assembled there to search for her husband. She often goes to attend the call of nature in the field outside village but does not perform agriculture work. When her husband had gone missing, she had become perturbed and had started crying but did not run here and there in search of him. She had stated to the I.O. that the accused had taken away Raghunandan from the place of incident but if the same was not recorded, she could not tell its reason. She had not seen as to when her husband was picked up by the accused and although it was right to say that at the time when Brahma was lifted to the place of chaupal, at that time, her husband was lying in the corner of chaupal of Basant.

42. Further she has stated that when she heard the sound of her husband and her brother-in-law being beaten, she, her daughter had come out of her house. On chaupal when her father-in-law had arrived then she saw that the accused were assaulting both her brother-in-law and husband in the corner of chaupal of Basant. She had disclosed it to I.O. that Sri Ram had beaten his daughter, Guddi and father-in-law but if the same is not recorded, she could not tell its reason. The wife of Brahma did not come out of his house after hearing hue and cry because she was not at home.

43. Further she has stated that her brother-in-law had dug the foundation in the portion which fell in his share which was in his possession since long and on the said place, there was already a 'kuttchi' wall which had fallen and the same after being dug, was re-constructed. Further she has stated that since prior to this occurrence, there was no talking terms between Sri Ram and the complainant side. She had stated to the I.O. that there was animosity between Sri Ram etc. and her family. Further she has stated that her chachia-father-in-law was Jodhan whose daughter was Inder who had become widow three years ago and was living in the house of Jodhan with her father-in-law and had died in that house only and other daughter of Jodhan i.e. Soberni was alive who had son and daughter. It was wrong to say that no occurrence took place in the manner which she has stated and that she had not received any injury in that occurrence and that she was stating so on being tutored by her father-in-law. She also stated it to be wrong that Brahma was found dead at about 1:00 a.m. in the night near chaupal of Basant and it was also wrong to say that her husband, Raghunandan went missing one day before the occurrence. The wife of Brahma had not come to mortuary. The dead body of Brahma was flown in Khannaut river in Shahjahanpur. Before coming to the P.S. next day of the occurrence in the morning, she had made search for her husband but could not find him. She had made search till afternoon. It is wrong to say that she had gone to the P.S. after after-noon and on her own stated that she had gone to the P.S. in the morning but it was wrong to say that she had made search of her husband till after-noon. She further stated that she kept on searching her husband from the time of chaibaina since morning till the after-noon and persisted in making this statement repeatedly. Thereafter, she again said that she did not go anywhere in search of her husband and after repeated query from her, she could not tell subsequently whether she made search for her husband till after-noon or not. It is wrong to say that on the next day following the occurrence in the morning, she had not gone to the P.S. and it is also wrong to say that she had gone to the Police-Station from her village at about 3:00 p.m. She also stated it to be wrong that firstly she went to the doctor and not to the police-station and also stated it to be wrong that she was not present on the place of incident nor did she have any torch with her. Her torch was seen by I.O. 15 days after the incident.

44. P.W.4, Dr. Ashok Kumar Agarwal who was posted as Senor Medical Officer in District Shahjahanpur conducted post-mortem of the deceased, Brahma at 4:00 p.m. on 6.04.1986, the dead body of whom was brought by Constable, Ajay Pal Singh and Ram Roop of P.S., Kaanth, who had identified his dead body. After his post-mortem, he had found the dead body about 1 ½ days old and the age was 25 years. The blood was oozing out of nose and ear. Rigor mortis had passed off from upper portion of the body but was found present in legs.

45. Following ante-mortem injuries were found on his (deceased, Brhama) person:

(I) Incised wound 7 cm. x 1 cm. x bone deep on the left side of fore head, 1 cm. above the left eye-brow. (II) Incised wound 3 cm. x 1 cm. x bone deep on left side of head, 1 cm. above the injury no.1. (III) Lacerated wound of 2 cm. x 1 cm. x muscle deep on left side of fore-head, 8 cm. above the root of left ear. (IV) Incised wound 5 cm. x 2 cm. x bone deep on the left side of head, 4 cm. above the root of the left ear. (V) Lacerated wound ½ cm. x ¼ cm. x muscle deep on the left side of face, 3 cm. below the lower eye-lid of left eye. (VI) Lacerated wound 3 cm. x .5 cm. x muscle deep on the front of left leg, 17 cm. below the knee. (VII) Abrasion of 1 cm. x 1/2 cm. on the left knee.

46. Cause of death was found to be comma and haemorrhage due to ante-mortem injuries.

47. This witness has proved the post-mortem report as Exhibit Ka-7 in his hand writing and has further stated that after sealing the clothes of the deceased, they were sent to F.S.L., Kaanth through Constable and the original copy of the post-mortem was sent to S.P. Shahjahanpur and one carbon-copy of the same was sent to S.S.P., Shahjahanpur. The other carbon-copy along with other 10 police papers and clothes in sealed bundles were handed over to S.O., Kaanth through constable. He has further stated that the death of deceased was possible to have happened on 4.4.1986 at 9:00 p.m. by injuries sustained by him and out of them, injury nos. I, II and IV could have been caused by Kanta while rest of the injuries could have been caused by lathi. All these injuries were sufficient to cause death in ordinary course and also stated that the death would have occurred soon after receiving these injuries.

48. In cross-examination this witness has stated that it was possible that the deceased might have died on 5.4.1986 at 4:00 am. He had not taken assistance of any lens in conducting the post-mortem. He has not made any mention of head or tail in respect of any of the wound. The measurement of the incised wound is recorded only with respect to its original width in the middle part of injury only. There was no mark of cut found on broken bones. He stated it to be right that any blunt object was used in causing injury and that in this case, the deceased might have died soon after receiving the injuries.

49. Dr. Vimal Kant Goyal has been examined as P.W.5 who has stated in examination-in-chief that he was posted on 5.4.1986 as Medical Officer at P.H.C. Kaant and at that date at about 5:00 p.m., he had conducted the medical examination of Smt. Somvati, wife of Raghunandan (deceased) and found following injuries on her person:-

(i) Swelling in left upper arm in the area of 13 cm. There is contusion on the lateral aspect of fore-arm in the area of 7 cm. x 3 cm., oblique in direction. Lower margin is 3 cm. above the left elbow joint. Colour of the contusion is blue. The duration of injuries is 24 hours old and injury was found to have been caused by blunt object and was simple in nature.

50. On the same day at 5:25 p.m., he examined, Chet Ram S/o Lochan (informant of this case) who was brought by Constable and found following injuries on his person:-

(i) Abrasion of 2.4 cm. x 0.5 cm. on right shoulder, 4 cm. below and medial to spine of right scapula, clotted blood was found present over abrasion.

(ii) Contusion on the right side of chest in the area of 3 cm. x 5 cm., 7 cm. below and lateral to right nipple. Colour was bluish.

(iii) Contusion on the upper part of left thigh (lateral aspect) in the area of 7 cm. x 3 cm. in size, 3 cm. below and behind the left ante. Superior iliac spine.

51. All the injuries were 24 hours old and were caused by blunt object and were found simple in nature.

52. This witness has further stated that these injuries could have been caused on 4.4.1986 at 9:00 p.m. by 'lathi'. He has proved the injury-memos of Smt. Somvati and Chet Ram.

53. In cross-examination, this witness has stated that the injury no. 1 of Chet Ram would have been one day old. He has conducted 5 to 6 medical examination prior to this as he has joined service on January, 1986. The normal timings of patients to be treated at P.H.C. is 7:30 a.m. to 1:30 p.m. On 5.7.1986, he was at P.H.C., Kaant from 7:30 till 1:30 p.m. The said time was stated by him for out-door patients. Medico-legal cases and emergency cases can be seen any time. He lives in campus of P.H.C. Itself. The contusion found on Somvati in the area of 7 cm. x 3 cm. could have come if she collided with blunt object such as iron rod. The Injury no. 1 of Chet Ram was not possible to be received by Sri Kant because in such a condition, direction would be such which was not found in the said injury. He had washed the injury no. 1 of Chet Ram and thereafter had applied the medicines. His injury nos. 2 and 3 could be received by falling upon any hard object but in that case, it would also be possible that some other injuries would have been received by him. There could be difference of six hours on either side which means that the said injuries could have been minimum 18 hours and maximum 30 hours old. He denied the suggestion that the injured had no injuries and he was making a false statement under police-pressure.

54. From the perusal of the above-mentioned statement of the above witness, it is apparent that the said injuries which are stated to have been received by wife of deceased i.e. Somvati and informant, Chet Ram are proved by this witness to have been received on 4.4.1986 at about 9:00 p.m. and whatever has been asked in cross-examination from the defence side, does not disprove the said timings of these injured having received the said injuries.

55. Dr. Arun Prakash Dixit has been examined as P.W.6 who conducted the post-mortem of deceased, Raghunandan on 7.4.1986, the dead body of whom was brought by Constable Sahab Singh and Home-Guard, Kamal Singh in sealed condition and was identified by them. The rigor-mortis passed off from his entire body and following ante-mortem injuries were found on his person:-

(i) Lacerated wound on left parietal area in the area of 3 cm. x 1 cm. x bone deep, 8 cm. above the left ear, underlying bone fractured.

(ii) Lacerated wound over right parietal in the area of 8.5 cm. above the right ear, 2 cm.x ¾ cm. x bone deep.

(iii) Lacerated wound over outer 1/3 of left eye-brow, 1 cm. x .5 cm. x muscle deep.

(iv) Lacerated wound over bridge of nose .5 cm. x ¼ cm. x skin deep.

(v) Lacerated wound over left cheek, 4 cm. in front of the tragus of left ear, 1.5 cm. x .5 cm. x bone deep.

(vi) Penetrating wound over chin 4 cm. below the angle of mouth, left 1 cm. x .5 cm. x 3 cm.

(vii) Multiple contusion over area of 16 cm. x 11 cm. back of chest mid line, 12 cm. below the ninth clavicle in size 5 cm. x 2 cm. to 1.5 cm. x 1 cm.

(viii) Lacerated wound between web of middle and right finger 1 cm. x .5 cm. x muscle deep.

(ix) Lacerated wound back of left middle finger middle part 1 cm. x ½ cm. x muscle deep.

(x) Contusion at the base of left hand thumb posteriorly 2 cm. x 1 cm.

(xi) Lacerated wound on front of right leg, 11 cm. below the tibia, 1 cm. x .5 cm. x muscle deep.

(xii) Lacerated wound over left leg 9 cm. below tibia 1.5 cm. x .5 cm. x muscle deep.

(xiii) Lacerated would over dorsal aspect of right foot upper part 1.5 cm. x .5 cm. x muscle deep.

(xiv) Lacerated wound over third toe of right foot dorsal aspect, middle part in the area of 1 cm. x .5 cm. x muscle deep.

Cause of death has been recorded to be due to comma as a result of ante-mortem head injuries.

56. This witness has proved the post-mortem report of the deceased, Raghunandan as Exhibit Ka-10 in his hand-writing and further stated that the clothes of the deceased in sealed bundle and nine police papers were handed over to the official who had brought the dead body.

57. The injury no. 6 was possible to be caused by 'sooja' (big pointed iron needle) and while rest of the injuries would have been caused by 'lathis'; the death of the deceased could have taken place on 4.4.1986 at 9:00 p.m.

58. In cross-examination, this witness has stated that the dead-body cannot be four days' old and further stated that there could be difference of 9-10 hours on either side, therefore, the dead body could be 3 days old; if the dead body would lie in water, the speed of decaying becomes slow; normally after 48 hours of the death, maggots are found in the dead body. Futher he has stated that beneath injury no. 6, he did not find any bone to have been fractured or cut although he has not written margins of said injury. He had not measured the depth of the injury which was a piercing one.

59. From the statement of this witness, it is apparent that as many as 14 injuries were found on the person of deceased by this witness and the timing of the said injuries caused to the deceased are proved by this witness to be three days' old at the most and has clearly suggested that the deceased could have died on 4.4.1986 at 9:00 a.m. which is the time when the prosecution has stated that the occurrence took place. Nothing has come out in the testimony of this witness which would make us to disbelieve evidence of this witness.

60. Constable 738, Abhai Pal Singh has been examined as P.W.7 who is a formal witness as he had brought the dead body for post-mortem to the mortuary along with necessary documents and is a constable who was posted on 5.04.1986 at P.S. Kaanth.

61. In cross-examination, this witness has stated that he had accompanied the Inspector, Ram Lakhan Singh to the village where occurrence took place and reached there at about 11:00 a.m. and found that there were ladies near the dead body of deceased, Brahma. He had not gone to the place of incident with Chet Ram nor he found Chet Ram near the dead body although he met him sometime thereafter. He had started with the dead body of Brahma at about 2:00 p.m. and Chet Ram had not come with the dead body from Amaura rather had come from Kaanth. He could not tell as to how long he remained at Amaura near the dead body and apart from him, one Constable and thee home-guards also accompanied the Inspector. He had not seen the dead body inside the house rather the same was outside the house. At about between 11:00 a.m. to 2:00 p.m., the Inspector had prepared the panchayatnama of the dead body of the Brahma. The dead body was carried by bullock-cart. Shahjahanpur where the mortuary was situated was about 17 kms. away where he had reached in the night. The statement of this witness has no significance other than that he had brought the dead body for the post-mortem.

62. C.P. 349, Sahab Singh has been examined as P.W.8 who has stated that on 6.4.1986, he was posted at P.S. Kaanth as Constable and had brought the dead body of deceased Raghunandan in sealed condition to the mortuary located in the District, Shahjahanpur and handed over the relevant papers to the doctor concerned along with sealed dead-body.

63. In cross-examination, this witness has stated that he had gone to Amaura village on 5.04.1986 with Inspector where he reached at about 11:00 a.m. The dead body of the deceased, Raghunandan was kept in a field near Bagan which was that of Brahma. He remained with the Inspector till he performed the inquest of deceased, Brahma and does not recollect as to when his dead body was dispatched. The informant, Chet Ram had not gone to the P.S. from the village with him. After dispatching the dead body of Brahma, he and the Inspector remained in the village itself and accompanied to search the dead body of Raghunandan. About his dead body, they could know on 6.4.1986 and, thereafter with the aid of the villagers the same was got searched and he and the Inspector had also gone near the dead body of the deceased, Raghunandan which was lying in water and was tied in a cloth. After the discovery of the dead body of Raghunandan neither his father nor his wife came there. They came to know about the dead-body of Raghunandan about 2:00 p.m. and by 4:00 p.m, he had started with the dead-body of Raghunandan. The dead body of Raghunandan was identified by all the villagers.

64. This witness is also a formal witness who had taken the body of Raghunandan for the post-mortem to be conducted after the same was discovered/ found lying in water.

65. After having perused the entire evidence and having heard the counsel of both the sides, the trial court has convicted the accused-appellants under the afore-mentioned sections, therefore, we have to see as to whether the trial court has rightly concluded that the accused were guilty on the basis of evidence which has come on record or is there any infirmity in making the assessment of the statement of witnesses particularly in the light of the arguments made by learned counsel for the appellants.

66. It is argued on behalf of learned counsel for the appellants that the appellants have been falsely implicated as both P.W.1 and P.W.3 who have stated themselves to be eye-witnesses of the occurrence have failed to clarify as to where deceased, Raghunandan had gone when they have stated that they had witnessed him also being beaten by appellants. The conduct of the P.W.2 and P.W.3 in not making search for the other son of P.W.1 (deceased, Raghunandan) who had not met immediately after his being missing shows that this occurrence has happened in some other manner at some other place and not in the manner which it is stated by the prosecution. In-fact some unknown assailants had caused the death of the deceased, Brahma in the dead of night and when people came to know about it then hue and cry was made by the P.W.1 and his family members where-after the other villagers also reached the place where the dead-body was lying and, thereafter the appellants have been implicated in this case falsely. There are lot of manipulations made in the G.D. as well as panchayatnama of the deceased because offence under Section 364 I.P.C. was subsequently added although no charge has been framed by the Court under Section 364 I.P.C. in this case. Further it was argued that the F.I.R. was ante-timed and that the story set-up by the prosecution that partition had taken place between the informant and the accused side was wrong because the daughter of Jodhan i.e. Inder was staying in the house of Jodhan and no partition had taken place as she died in that very house. Further it was argued that had there been any wall being raised by the informant side as is stated in the F.I.R., the same would have been opposed by the accused side forthwith in the morning itself and would not have allowed the foundation to be dug. It is a concocted story made by the prosecution that during the day, the foundation was dug up for wall to be constructed and when in the evening the accused side came near the wall and asked as by whose permission the said foundation was dug, the quarrel had started, therefore, the appeal deserves to be allowed and the accused appellants need to be acquitted.

67. On the other hand, learned A.G.A. has vehemently argued that there is no infirmity in the impugned judgement because the entire evidence has been properly appreciated by the trial court. It is proved from the side of prosecution beyond doubt that the quarrel had happened between informant and accused side in respect of construction of wall regarding which the foundation had been dug by the informant side which was opposed and due to this enmity, all the accused appellants came armed with weapons mentioned above and started assaulting both the deceased and in this incident, the informant had also received injuries and besides him, wife of the deceased, Raghunandan (P.W.3) had also received injuries. Both these witnesses are injured eye-witnesses who have clearly deposed that the incident happened near the wall where the construction was being raised and the foundation was dug and from there which is shown by 'A' in the site-plan, Exhibit Ka-17, the marpeet continued with both the deceased and the other persons of the complainant side up to the place shown by accused which is about 39 paces away from the place shown by 'A' and the said place is shown by 'X' which is near chaupal of Basant and after having given effect to the occurrence, the accused appellants fled towards east which are shown by double-arrows.

68. It was further argued by the learned A.G.A. that much doubt was sought to be created by the defence side that the dead body of the other deceased, Raghunandan was found at a distant place, therefore, he could not have been beaten at the place where the prosecution has stated that he was also beaten with other deceased, Brahma and it was also argued that had he been beaten so badly, he could not have run away from the place of incident to be found dead at a distant place in river water. It was argued by the learned A.G.A. that it was quite possible that the other deceased, Raghunandan would have run away from the place of incident after getting injured to save himself and subsequently he was found dead because the injuries which were found in the post-mortem upon the dead body of this deceased which are also found to have been caused by the doctor by the weapons which are stated by the prosecution to have been used in commission of this offence and time also has been stated by the doctor to be the same when the occurrence is stated by the prosecution to have taken place.

69. In the last, it was argued that the trial court's judgement deserves to be upheld and appeal deserves to be dismissed as the ocular testimony fully stands corroborated by the medical report and the prosecution case is conclusively proved.

70. We have perused the entire evidence on record and have also gone through the impugned judgement and find that according to the prosecution case, the land of Jodhan, who was brother of the father of the informant and had no male child, was partitioned between the complainant and the accused side and the informant side had dug the foundation for raising wall at the place shown by 'A' in site-plan which was disputed by the accused side and in the evening when the accused, Sri Ram and his sons Ram Autar, Prakash and Dhan Pal returned to the field, they started abusing the sons of the informant i.e. Raghunandan and Brahma (both the deceased) and started filling the said foundation and when they were resisted from the informant side, they, all the four accused started assaulting with 'lathi', 'kaanta' the sons of the informant, P.W.1 and when informant's children raised alarm, P.W.1, wife of Raghunandan, Somvati and daughter of Raghunandan, Guddi also reached there who witnessed the occurrence and in the process, they also got injuries and in this occurrence, Brahma died on the spot while Raghunandan had gone somewhere whose whereabouts could not be known but his dead-body was recovered on 6.04.1986 from Garai river at about two kms. away from the place of incident.

71. The eye-witnesses i.e. P.W.1, Chet Ram and P.W.3, Somvati who is wife of deceased, Raghunandan have deposed clearly that they have witnessed this occurrence, we find that two real brothers, Brahma and Raghunandan have been done to death in the present case in respect of which P.W.1, Chet Ram and P.W.3, Somvati who are injured eye-witnesses, Dr. Ashok Kumar Agarwal as well as Dr. Arun Prakash Dixit and I.O. Ram Lakhan Singh have been examined by the prosecution. Both Chet Ram and Somvati had stated that the deceased, Brahma died due to assaults made upon him by the accused appellants near Chaupal of Basant. The inquest of dead body of Brahma, Exhibit Ka-11 has been prepared and Dr. Ashok Kumar Agarwal had stated that the Brahma would have died on 6.04.1986 in the evening at about 4:00 p.m. by the ante-mortem injuries which were caused to him, seven in number which include two lacerated wound in head which were cause of his death, therefore, it was proved beyond reasonable doubt that the Brahma had been done to death due to injuries caused to him by the appellants. As regards the death of other deceased, Raghunandan, it has come in evidence during investigation that his dead body was found on 6.04.1986 in Garai River, site-plan of the place from where the body was recovered, is Exhibit Ka-27.

72. P.W.6, Dr. Arun Prakash Dixit conducted the post-mortem of Raghuveer on 7.04.1986 and had found 14 ante-mortem injuries on his person which resulted in his death.

73. We are of the opinion that these injuries were sufficient to cause death of these two deceased in ordinary course of the nature which were caused by the accused-appellants as per two eye-witnesses mentioned above.

74. As regards the place of occurrence, P.W.1, Chet Ram has clearly stated that the occurrence took place from his house where the foundation was dug up to the chaupal of Basant which is shown in the site-plan, Exhibit Ka-17 by 'X' and the foundation which were being dug was shown by 'A' in the site-plan and the distance between these two spots in the said site-plan is shown to be 39 paces. It is quite believable that the occurrence of marpeet started at 'A' and went up to the place 'X' i.e. near the chaupal of Basant and, thereafter, accused fled from there. This place of incident is absolutely proved from the testimony of P.W.1 and P.W.3 which are also shown by the I.O. in the site-plan.

75. The argument with respect to ante-timing of the F.I.R. is also necessary to be discussed by us. It is apparent from evidence which has come on record that a written report was given at P.S., Kaant on 5.04.1986 at 9:20 a.m. by informant, Chet Ram and on the basis of the same, the Head-Constable, P.W.2 had prepared the chik F.I.R., Exhibit Ka-2 and made endorsement of the case in G.D., Exhibit Ka-3. In the said report, P.W. 2 has also clarified that all the three injured i.e. Chet Ram, Somvati and Guddi had come to the P.S. for lodging the report and it has also come on record that place of incident is located 10 kms. away from the P.S., therefore, it was quite logical that instead of going to lodge the report in the night itself, the informant side waited till next morning and went to lodge the report, therefore, we do not find that there is any kind of delay in lodging the F.I.R. and the conduct of P.W.1 in this regard seems to be above-board. We also cannot loose sight of the fact that in such a situation when one son of the deceased was lying in dead condition in-front of his father (P.W.1), he would have been in a tremendous mantle trauma and in such a situation , rushing to the P.S. to lodge the F.I.R. forthwith which also required crossing Garai river, would be a difficult proposition.

76. The most important aspect which was also vehemently argued by the learned counsel for the appellants was about the Raghunandan. It was mentioned in the F.I.R. as to where deceased, Raghunandan had gone, the informant did not know about that despite the fact that P.W.1 and P.W.3 have stated in their testimonies that the marpeet took place in front of their eyes, it was argued that how could it be possible that Raghunandan who was being beaten on the spot could flee from there unnoticed by these two witnesses, therefore, genesis of the case stands shrouded in mystery and prosecution case deserves to be discarded. We are not inclined to accept this view of the learned counsel for the appellants because it is quite likely that Raghunandan who also got assaulted by the accused appellants as number of injuries are reflected which he had sustained which are proved by the doctor and which were found to be responsible for causing his death, was beaten on the spot and he could have left the place only to save his life and it could be possible that the accused would have thrown his body after tying the same in the river, Garai which was situated very near within a distance of two kms. Although it is true that there is no defence evidence brought on record from the side of prosecution as to how the dead body of Raghnandan came to be found in the said river at distance of about two kms. but looking to the fact that the doctor in post-mortem has clearly stated that the injuries which were sustained by the deceased were of the same weapons which were being wielded by the accused-appellants at the time of death of the deceased, Raghunandan which is stated to be probable by these witnesses, P.W.1 and P.W.3 who have stated to have seen this deceased being beaten by the appellants, therefore, we can conclude from all this that the deceased died due to the same injuries which were caused and were seen to have been caused by the accused appellants.

77. It may also be made clear by us that ante-timing of F.I.R. also gets demolished because F.I.R. was lodged promptly from the side of informant despite the fact that the dead body till then of Raghunandan had not been discovered, therefore, very truthfully it was mentioned in F.I.R. that the informant did not know as to where his other soon, Raghunandan had left or gone. He had been beaten badly by the accused side in front of them which is also corroborated by the P.W. 3 that she had seen the accused appellants beating her husband, Raghunandan. It could be possible for the informant to lodge the F.I.R. after the discovery of the dead body of Raghunandan and then it could be thought that the F.I.R. was ante-timed. It is not the situation in the present case. Some arguments also came up with respect to incorporation of Section 364 I.P.C. in G.D. in other challani documents by way of manipulation by the prosecution side but we are not inclined to consider the same to be of any importance because the trial court has not framed charge under Section 364 I.P.C. in the present case, therefore, after having made above analysis, we have come to the conclusion that the trial court does not appear to have drawn any unfounded conclusion and appears to have made very logical and reasonable conclusion and thus we find that no such infirmity in the impugned judgement is there that the same be interfered with.

78. Trial court judgement deserves to be upheld and is accordingly upheld and the appeal deserves to be dismissed and is accordingly dismissed.

79. Appeal with regard to appellant no.1 Shriram has already been directed to be abated vide this Court's order dated 8.8.2018. With regard to all other accused-appellants i.e. Ram Autar, Prakash and Dhan Pal who are on bail, their bail bonds and personal bonds are discharged. They are directed to be taken into custody to serve out the remaining sentence.

80. Let the copy of this judgement be transmitted to the trial court expeditiously along with lower court record with direction to the trial court that trial court shall ensure that the accused-appellants are taken into custody and serve out the remaining sentence in accordance with law.

(Dinesh Kumar Singh-I,J.) (Ramesh Sinha,J.) Order Date:- 26.04.2019 A. Mandhani

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